Same-sex marriage (SSM)
Part 2: Is SSM inevitable in every U.S. state?
Arguments based on U.S. Constitution,
and public opinion. Conclusions
This topic is a continuation from a previous essay which discussed
inevitability of SSM based on previous redefinitions of marriage
A second approach to the question: "Is same-sex marriage in all U.S. states inevitable?" An argument based on the U.S. Constitution:
The "equal protection" clause in the 14th Amendment to the U.S. Constitution states, in part:
The Pledge of Allegiance of the United States picks up this theme by concluding with an expression of hope for a future of an America:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." 1
"... with liberty and justice for all."
However, "any person" in the Constitution does not really mean any person, nor does "all" in the Pledge really mean all. For example, a person convicted of a crime and sentenced to jail is deprived of many liberties for the duration of their incarceration. Prior to 2003, In Texas and four contiguous states -- Kansas, Missouri, and Oklahoma -- state laws considered same gender sexual behavior a "crime of moral turpitude." In 1998, two gay men in Texas were arrested for doing just that. Although they lost their case in lower courts, they appealed to the U.S. Supreme Court. In 2003-JUN, the Justices found the Texas law unconstitutional along with similar laws in 12 additional states. Same-gender sexual behavior was still considered an immoral act by many Americans. However, it was no longer a crime in any state. This made it possible to claim that the 14th Amendment applied not only to the legality of sexual behavior by lesbians, gays and bisexuals (LGB), but that LGBs also have a right to access marriage under the Amendment's equal protection clause. Decriminalizing same-gender sexual behavior is a precondition to the expansion of marriage to include same-sex couples.
Since the majority of American adults now support access to marriage by same-sex couples, and since same-sex sexual activity is now decriminalized, all that would be required to legalize SSM across the U.S. would be for:
- A same-sex couple wanting to marry, who lives in one of the 37 states where SSM is not available, to launch a lawsuit in a federal District Court to be appealed to the U.S. Supreme Court and be accepted by it, and
- The votes of five or more Supreme Court Justices who held the same beliefs about same-sex marriage as the majority of American adults.
There should be no problem in providing multiple lawsuits seeking SSM. The latter condition is more troublesome. A number of commentators have noticed that every time a Justice of the Supreme Court had died or resigned over the past 25 years, their replacement has been more conservative.
If both condition were met, the result could be a court decision similar to the ruling about interracial marriage in the Loving v. Virginia lawsuit. State laws and clauses in state constitutions banning same-sex marriage would then be declared unconstitutional across the U.S. In fact, it would not even be necessary to write an new ruling. The text of the Court's decision in Loving v. Virginia could easily be edited to replace all references to "race" with "sexual orientation." 2 Then. All loving, committed couples -- whether same-sex or opposite-sex -- would then be able marry in any state, as they are in Canada and in over a dozen other countries of the world.
A third approach to the question: "Is same-sex marriage in all U.S. states inevitable?" An argument based on public opinion trends:
Recent polls show consistently that most American adults favor same-sex marriage. Further, support is increasing by about 1 to 2 percentage points a year, as opposition drops by about the same amount. Thus the margin of support increases about 2 to 4 percentage points a year, or 20 to 40 percentage points a decade! A Pew Research Center poll in 2011 showed that even among the two groups most opposed to SSM -- evangelical Christians and Republicans -- young adults aged 18 to 30 either already support SSM or will do so by about 2014. Seniors aged 65 or older remain either neutral or opposed to SSM. However, support of SSM by all age groups is steadily increasing.
The prime directive of every state senator, representative, and governor is to be re-elected. This forces them to be responsive to public opinion -- at least to some degree. Once the public's support for SSM becomes even stronger then it is today, it is likely that Republican and even Tea Party legislators will take action to make SSM available in every state.
On 2013-MAY-01 to 05, the Pew Research Center for the People and the Press conducted a poll, indicating that:
- Overall, 72% of American adults believe that legal recognition of same-sex marriage is "inevitable."
- Among those in favor of SSM, 85% say it is inevitable.
- Among those opposed, 59% say it is inevitable.
1,505 randomly selected American adults were sampled. The margin of error is ±2.9 percentage points. 3
Feelings of inevitability may well have increased 19 days after the poll was taken when the U.S. Supreme Court issued two major rulings. One legalizes SSM in America's most populous state -- California. The other declared a major clause in the federal Defense of Marriage Act unconstitutional thus permitting married many same-sex couples to access federal protection, benefits, inheritance, and other programs for themselves and their children.
The Pew survey also found out that 68% of those who know personally many gays or lesbians support SSM, while only 32% of those who don't know any support SSM. This finding emphasizes the importance of lesbians and gays coming out of the closet and risking emotional, spiritual, and physical abuse by being open about their sexual orientation.
Rick Rosendall, president of the Gay and Lesbian Activists Alliance of Washington, D.C. said:
"As for the gay marriage issue, it's not about whether we will have families. We already do. It's about whether we will enjoy the same protection as our siblings, neighbors and co-workers. The more people recognize that their siblings, neighbors and co-workers include gay men and lesbians, the clearer it is that those family members, neighbors and co-workers should be treated the same as they are." 4
Ryan Anderson, a scholar at the Heritage Foundation, a conservative think tank, is opposed to SSM. He said:
"This poll should caution us to redouble our efforts in explaining to Americans what marriage is, why marriage matters, and what the consequences of redefining marriage are. ... The more important question is not what will happen -- but what we should do." 4
Anderson's comment points out a problem that is causing the division in the country over SSM: There is no national consensus about what marriage actually is. For example:
- Some people look upon marriage as a voluntary union of one woman and one man with the primary goal of conceiving and raising children who are genetically related to both parents and who would be raised in a family with both male and female role models. Conservative clergy often state that this has been the only form of marriage in the history of humanity. However, they overlook polygynous marriages involving one male and multiple females which were common in Biblical times among Jews and others, in earlier centuries among members of The Church of Jesus Christ of Latter-day Saints (The Mormons) starting in the 1830's, and continuing until the 1920s, and among Muslims for 1.5 millennia down to the present day.
- Others view it as a voluntary union of two persons who commit to supporting each other for the rest of their life, who may decide to have children who are genetically related to both parents, to one parent, or to neither parent (the latter case involving foster parenting or adoption). This definition would include all loving, committed couples, limited by restrictions such as the age of both parties, whether they be of the same or opposite gender.
Pew survey also determined that segments of the population in which there is a high percentage of individuals who believe that SSM is inevitable include:
- 75% of women,
- 70% of men,
- 77% of whites,
- 76% of those 30 to 49 years of age,
- 74% of those 50 to 64 years of age,
- 82% of college graduates,
- 78% of those with some college education,
- 79% of white mainline Protestants,
- 71% of Catholics,
- and 82% of NOTAs (those not affiliated with any faith group)
Surprisingly, Republicans, Democrats and Independents were all in the range of 73% ±1%.
Number sampled = 1,504. Margin of error = ±2.5 percentage points. 2
When the majority of those who want to exclude same-sex couples from marriage feel that SSM is inevitable, it should become increasingly difficult for groups like NOM to raise funds. It is one thing for their supporters to donate money to prevent marriage equality from ever happening; it is very different thing to donate money that will only have the effect of delaying marriage equality for a little while.
- Four past occurrences when marriage eligibility was redefined in the U.S.,
- The equal protection clause of the 14th Amendment of the U.S. Constitution,
- Current levels and trends of public support for marriage equality, and
- The high percentage (72%) of American adults who believe that SSM is inevitable, and
- The move towards SSM becoming available in all other English speaking countries,
it would seem that same-sex marriage in the U.S. is indeed inevitable. However, it will almost certainly be the last predominately English-speaking country in the world to achieve marriage equality, mainly because of its higher level of religiosity.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "US Constitution - 5th and 14th Amendments," findUSlaw, at: http://finduslaw.com/
- Text of "Loving v. Virginia (No. 395) 206 Va. 924, 147 S.E.2d 78, reversed," U.S. Supreme Court, 1967-JUN-12, at: http://www.law.cornell.edu/
- Poll: Gay Marriage Viewed As 'Inevitable' By Most Americans, Huffington Post, 2013-JUN-06, at: http://www.huffingtonpost.com/
- Cathy Payne, "Report: Most foresee legal recognition of gay marriage," USA Today, 2013-JUN-07, at: http://www.usatoday.com/
Copyright © 2003 by Ontario Consultants on Religious
Originally written: 2003-JUN-25
Latest update: 2013-JUN-30
Author: B.A. Robinson